Com. v. Martin, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
JERMAINE L. MARTIN
Appellant No. 1361 MDA 2019
Appeal from the Judgment of Sentence Entered May 3, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0000442-2016
BEFORE: STABILE, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY STABILE, J.: FILED JULY 13, 2020
Appellant, Jermain L. Martin, appeals from the May 3, 2019 judgment
of sentence imposing an aggregate six to twenty-three months of
incarceration followed by five years of probation for theft by unlawful taking.1
We affirm.
The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)
opinion:
Between October of 2014 and August of 2015, [Appellant]
was the board president of the Wilson Junior Soccer Club (WJSC),
a nonprofit organization for youth soccer in Berks County. The
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3921. Appellant’s conviction for theft by deception, 18
Pa.C.S.A. § 3922, merged for sentencing purposes. In a companion case,
Appellant pled guilty to theft of leased property, 18 Pa.C.S.A. § 3932. The
trial court imposed sentence for that offense in the same May 3, 2019
proceeding. We review that sentence at 1362 MDA 2019.
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main account of the WJSC was at the National Penn Bank. The
all-volunteer board of the WJSC decided to open a second bank
account at Citizens Bank for purposes of easier access to funds for
WSJC expenses, specifically its fall tournament. One debit card
for the Citizens Bank account was mailed to the WSJC secretary
Kristin Zary who made some small purchases for the fall
tournament and then turned the card over to [Appellant] and
never saw it again. All the members of the board had
authorization to withdraw funds for WJSC expenses at Citizens
Bank. On August 3, 2015, when Jeff Blankenbiller, second vice
president and organizer of the WJSC Fall Classic Tournament went
to access funds, the balance appeared to be significantly lower
than expected. He called the first vice president, Jim Woods,
regarding his discovery, which showed a series of withdrawals of
large amounts of cash in July, varying between $800 and $2,500.
He alerted [Appellant] as well as Ms. Zary. Ms. Zary looked at the
withdrawals and attempted to identify deposits and the specific
purposes for the withdrawal. There appeared to be no explanation
for WJSC expenses for many of the withdrawals. At WJSC board
meetings, [Appellant] gave treasurer’s reports which became
increasingly vague as the withdrawals became larger and more
frequent. [Appellant] systematically was transferring money from
the larger National Penn account to the less secure Citizens Bank
and then making withdrawals either utilizing the debit card which
required no signature or without the debit card but using his
signature. The teller remembered [Appellant] being the one
making multiple and large withdrawals from the children’s soccer
account. [Appellant] met with police and acknowledged
possession of the debit card and making the withdrawals but
claimed they were for WJSC purposes, which were ultimately
unable to be verified as legitimate. Ultimately, there were
approximately 44 withdrawals ranging from $35 to $6,000 for a
total of $48,789.76 taken from the WJSC account.
Trial Court Opinion, 11/27/19, at 4-5.
The jury returned a guilty verdict on February 1, 2019, after a four-day
trial. In addition to the sentence described above, the trial court ordered
Appellant to make $48,789.76 in restitution. Appellant filed a timely post-
sentence sentence motion challenging the weight and sufficiency of the
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evidence, and seeking modification of sentence. The trial court denied relief,
and this timely appeal followed. On appeal, Appellant challenges the weight
and sufficiency of the evidence in support of his convictions for theft by
unlawful taking and theft by deception.
When evaluating a sufficiency claim, our standard is whether,
viewing all the evidence and reasonable inferences in the light
most favorable to the Commonwealth, the factfinder reasonably
could have determined that each element of the crime was
established beyond a reasonable doubt. This Court considers all
the evidence admitted, without regard to any claim that some of
the evidence was wrongly allowed. We do not weigh the evidence
or make credibility determinations. Moreover, any doubts
concerning a defendant’s guilt were to be resolved by the
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010), appeal
denied, 29 A.3d 796, (Pa. 2011). “This standard is equally applicable to cases
where the evidence is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime beyond a
reasonable doubt.” Commonwealth v. Martuscelli, 54 A.3d 940, 947 (Pa.
Super. 2012). “Although a conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not establish guilt to a
mathematical certainty.” Id.A person is guilty if theft by unlawful taking where “he unlawfully takes,
or exercises unlawful control over, movable property of another with intent to
deprive him thereof.” 18 Pa.C.S.A. § 3921(a). Appellant argues the
Commonwealth produced insufficient evidence that Appellant took the money
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and/or that he took it with intent to deprive the WJSC of money. In particular,
Appellant argues the evidence against him was insufficient because, among
other things, there was no video footage of his alleged teller and ATM
withdrawals; the evidence of his transactions was limited to the testimony of
one teller; all three of the WJSC board members were authorized to use access
its bank accounts; no forensic accounting was done; Appellant’s lifestyle did
not change; and the Commonwealth produced no evidence of the whereabouts
of the missing money. Appellant’s Brief at 14.
Appellant’s argument ignores two crucial components of our standard of
review. First, the Commonwealth can prove its case with wholly circumstantial
evidence. Second, we must view the evidence in a light most favorable to the
Commonwealth as verdict winner. The evidence before us, viewed in a light
most favorable to the Commonwealth, establishes that Appellant was in
possession of the WJSC’s debit card for its Citizens Bank account, with which
Appellant could withdraw money without a signature. Kristin Zary, the WJSC’s
secretary, gave Appellant the card shortly after opening the account and never
received it back. N.T. Trial, 1/29/19 – 2/1/19, at 193-95. James Woods and
Jeffrey Blankebiller, the other board members, never had the card. Id. at
150-51, 193. The Citizens Bank account was opened at Appellant’s suggestion
so that the WJSC could pay bills more quickly during a tournament. The
evidence also establishes that a Citizens Bank teller recognized Appellant as
the person who repeatedly appeared at the bank to withdraw funds from the
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WJSC account. Id. at 310-11. During the period of the teller’s observations,
large amounts of money were withdrawn from the WJSC’s account that did
not correspond with any WJSC expenses. Id. at 195-96; 314-24.
Disbursements from the National Penn Bank account required board
approval and two signatures. Id. at 79, 101. Appellant nonetheless
persuaded another WJSC board member to authorize transfers from the
WJSC’s National Penn Bank account to its Citizens Bank account, falsely
representing that these transfers had board approval. Id. at 150.
Thus, the evidence establishes that Appellant had access to the WJSC’s
account, that he was repeatedly seen making withdrawals from the account,
that his withdrawals did not correspond to any legitimate WJSC expense, and
that he gave misleading accounts of the reasons for the withdrawals. This
evidence, read in a light most favorable to the Commonwealth as verdict
winner, establishes that Appellant took money from the WJSC with the intent
to deprive the WJSC of that money. Thus, we reject Appellant’s argument as
to the sufficiency of the evidence.
Appellant also challenges the sufficiency of the evidence in support of
his conviction for theft by deception. The Pennsylvania Crimes Code defines
theft by deception as follows:
(a) Offense defined.--A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind; but
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deception as to a person’s intention to perform a promise shall not
be inferred from the fact alone that he did not subsequently
perform the promise;
(2) prevents another from acquiring information which
would affect his judgment of a transaction; or
(3) fails to correct a false impression which the deceiver
previously created or reinforced, or which the deceiver knows to
be influencing another to whom he stands in a fiduciary or
confidential relationship.
(b) Exception.--The term “deceive” does not, however,
include falsity as to matters having no pecuniary significance, or
puffing by statements unlikely to deceive ordinary persons in the
group addressed.
18 Pa.C.S.A. § 3922.
Appellant argues that the Commonwealth failed to prove he created a
false impression to gain access to the WJSC’s funds. “A person is guilty of
theft by deception if he intentionally obtains property from another by
deception. The Commonwealth must prove that the victim relied upon the
false impression.” Commonwealth v. McSloy, 751 A.2d 666, 669 (Pa.
Super. 2000), appeal denied, 766 A.2d 1246 (Pa. 2000).
Appellant’s argument for this conviction is limited to a single paragraph,
in which he fails to include any supporting law or citations to the record.
Appellant’s Brief at 32. Therefore, he has waived his challenge to theft by
deception. Pa.R.A.P. 2119(b), (c); Commonwealth v. Hernandez, 39 A.3d
406, 412 (Pa. Super. 2012), 63 A.3d 1244 (Pa. 2013). In any event, the
record reveals that Appellant presented various National Penn Bank checks to
another board member to obtain a second signature, representing that WJSC’s
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board had approved the check when it had not. Thus, Appellant used
deception to obtain funds from the WJSC’s National Penn Bank account.
For the foregoing reasons, Appellant’s sufficiency of the evidence
arguments fail.
Next, Appellant claims the trial court abused its discretion in denying
Appellant’s motion for a new trial based on the weight of the evidence.
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. Rather, the
role of the trial judge is to determine that notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny
justice. It has often been stated that a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.
An appellate court’s standard of review when presented with
a weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
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Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (emphasis in
original).
Here, Appellant notes that the eyewitness teller did not identify specific
transactions Appellant made. He also notes that the testimony of other board
members was inconstant as to how the WJSC handled its financial statements.
Appellant also notes that there is no evidence as to where the missing money
went.
As we explained in response to Appellant’s sufficiency of the evidence
arguments, the Commonwealth produced a substantial body of incriminating
circumstantial evidence. The Commonwealth did not need to establish what
Appellant did with the money. The Commonwealth only needed to prove that
he took it (in some instances under false pretenses) and did not use it for
WJSC expenses. We discern no abuse of discretion in the trial court’s finding
that the jury’s verdict was not contrary to the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/13/2020
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